Thursday, April 25, 2024

Glimmer of Hope

A Delhi High Court judgment regarding protection to a same sex interfaith couple reaffirms the principles of consent, love and individual freedom and paves the way for more inclusivity in society.

A Delhi High Court judgment regarding protection to a same sex interfaith couple reaffirms the principles of consent, love and individual freedom and paves the way for more inclusivity in society

In a significant stride towards ensuring equal rights and protection for all citizens, the Delhi High Court recently delivered a landmark judgment granting police protection to a same-sex interfaith couple—a Hindu woman and a Muslim one. They alleged they were getting threats from their families. 

The Court’s decision not only reaffirms the principles of consent, love and individual freedom, but also sends a powerful message of inclusivity, acceptance and progress for a diverse and evolving society. 

The decriminalisation of Section 377 was a watershed moment for LGBTQ+ rights in India. It not only removed the legal threat hanging over the community, but also ignited conversations and debates about homosexuality, discrimination and human rights across the country. The judgment empowered the LGBTQ+ community to be more visible, vocal and assertive in demanding their rights and challenging social norms. Yet, challenges persist as far as acceptance goes. Discrimination, prejudice and violence against LGBTQ+ individuals still exist in various forms. The fight for equal rights, protection, and recognition continues, including issues such as marriage equality, adoption rights and workplace discrimination.

By extending police protection to the lesbian couple, the single bench of Justice Rajnish Bhatnagar of the Delhi High Court sent a powerful message. Same-sex relationships and interfaith unions have long faced resistance and condemnation, particularly in conservative societies. While progressive strides have been made globally, these relationships still encounter resistance from families, communities and even the legal system. Against this backdrop, the Delhi High Court judgment is a glimmer of hope for such individuals. The petitioners approached the Court through the Legal Services Committee.

This verdict is rooted in the recognition and protection of fundamental rights enshrined in the Constitution. Article 21, which guarantees the right to life and personal liberty, is at the core of this ruling. By acknowledging the threats faced by the same-sex interfaith couple, the Court has affirmed that the State has an obligation to ensure the safety and security of all its citizens. This order emphasises that no individual should be subjected to harm or violence on the grounds of their sexual orientation or religious beliefs.

The plea filed before the High Court alleged certain instances of mental and physical torture against the couple and family members of the Muslim woman and threat to get them killed if their relationship continued. It was contended that the Hindu woman was taken away forcefully to another place to marry a man against her free will. She was brought to a shelter home by the intervention of the Delhi Commission for Women, and the couple was living together there. The family of the Hindu woman made accusations of religious conversion and prostitution against the Muslim woman.

There are other cases that highlight the courage and resilience of same-sex couples in India who face numerous challenges. By approaching courts, they not only seek protection for themselves, but also contribute to the broader movement for LGBTQ+ rights in the country. In cases such as XYZ vs State of Delhi 2019; Sonal Giani vs State of Maharashtra, 2016; Sreeja vs State of Kerala, 2020 and Arif Jafar vs State of Uttar Pradesh courts granted relief to the same-sex couple and acknowledged the importance of safeguarding the rights of the community against harassment and constant threats from society.

On the other hand, there have been some unfortunate events where such couples were denied justice. Various High Courts such as the Rajasthan High Court, Gujarat High Court, Madras High Court and Karnataka High Court did not provide any protection to same-sex couples; instead, they advised them to resolve the matter through mediation and counselling sessions to explore the possibility of a compromise between them and their families.

LGBTQ+ rights in India have undergone a transformative journey over the years, culminating in a historic Supreme Court ruling in 2018—the Navtej Singh Johar case—that decriminalised Section 377 of the Indian Penal Code. The apex court unanimously declared that consensual adult gay intercourse is not a crime because sexual orientation is innate, and people have no control over it. The Court recognised the importance of individual autonomy, privacy and dignity, asserting that sexual orientation is an inherent aspect of one’s identity and that any discrimination based on it is a violation of fundamental rights secured under the Indian Constitution. 

While speaking on LGBTQ+ rights, Chief Justice of India DY Chandrachud said that the Navtej Singh Johar case was much more than just decriminalising Section 377. “It is about an aspiration to realise constitutional rights and equal existence of LGBT community as other citizens. To deny the LGBT community of their right to sexual orientation is a denial of their citizenship and a violation of their privacy. They cannot be pushed into obscurity by an oppressive colonial legislation.”

Section 377, a colonial-era law introduced in 1861, criminalised “unnatural” sexual acts, including same-sex relationships. For decades, this law had been used to perpetuate discrimination, harassment and violence against LGBTQ+ individuals. They faced social stigma, exclusion, and the constant fear of legal repercussions simply for being who they were.

The decriminalisation of Section 377 set the stage for broader societal changes and highlighted the importance of legal reform, awareness and education in promoting inclusivity and equality. As India moves forward, it is essential to ensure that LGBTQ+ individuals are not only protected by law, but also fully embraced and empowered to live their lives authentically and without fear of discrimination.

The Delhi High Court’s decision also encourages a broader conversation on interfaith relationships within Indian society. It prompts families, communities and religious institutions to introspect and engage in a dialogue that can bridge the gap between tradition and evolving social norms.

Chief Justice Chandrachud had reportedly said: “By decriminalising homosexuality, we have not just recognised treating relationships between consenting adults of the same gender, but we’ve also recognised that people who are of the same sex would even be in stable relationships.” 

—By Ritika Gaur and India Legal Bureau


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